Damages, For property taken or injured under statutory authority. Grade Crossing. Municipal Corporations. Way. Practice, Civil, Exceptions.
On exceptions by a town after a verdict in favor of the petitioner at the trial of a petition, under R.L.c. 111, § 153, by the owner of land for damages resulting from the discontinuance, in accordance with a decree of the Superior Court, of a portion of a public way upon which he alleged his land abutted, the following facts appeared from the bill of exceptions: The way for a part of its course passed through the petitioner's land and he owned the fee to that portion of it, subject to the public easement. It then turned at an obtuse angle and crossed a railroad location. The portion of the way which was discontinued was the portion which was within the railroad location and was bounded by the line which separated the railroad location from the petitioner's land, and thus divided the way, where it ran through the petitioner's land, longitudinally, the remaining part of the way, that portion upon the petitioner's land, not being discontinued. The boundaries described in the bill of exceptions and in a plan annexed thereto showed that the petitioner's land did not merely touch the discontinued portion of the way, but that a considerable part of the petitioner's premises not included in the way abutted directly upon the discontinued portion of the way. It also appeared that the portion of the way which was discontinued was taken by the court's decree for railroad purposes. The judge who presided at the trial refused to rule that the petitioner's land did not in any part abut upon the discontinued portion of the way; and the respondent excepted. Attached to the brief of the respondent at the argument of the exceptions in this court, was a plan, not a part of the record, which purported to show that the petitioner's land did not in any part abut upon the discontinued portion of the way in any place. Held, that the exception should be overruled.
SHELDON, J.
The respondent's contention is that the petitioner's premises did not in any legal sense abut upon the discontinued portion of the highway, and therefore, as no land of hers was taken, she is not entitled to recover any damages under the provisions of R.L.c. 111, § 153, now St. 1906, c. 463, Part I, § 37, that "all damages which may be sustained by any person in his property by the taking of land for or by the alterations of the grade of a public way, or by an abutter thereon by the discontinuance of such public way, to the same extent as damages are recoverable by abutters on ways discontinued by towns, shall primarily be paid by the city or town." The petitioner subject to the public easement owned the land under the street; the respondent asserts that no other part of her land abutted upon the discontinued portion of the street, and contends that for this reason she could not be regarded as an abutter thereon. Nichols v. Richmond, 162 Mass. 170. But the discontinued portion of the road was indicated on the map or plan which was filed with the commissioners' report as "parcel A"; and an inspection of that plan, as shown by the copies annexed to the bill of exceptions, shows that a considerable part of the petitioner's premises, outside of what was included in the public street, did abut directly upon the discontinued portion of the street. The facts that the whole of the street was within the boundary lines of the location of the railroad, and that the discontinued portion of the street was taken for railroad purposes by a subsequent clause of the commissioners' report, are not material. Under these circumstances the plaintiff, being an abutter on the discontinued way, is entitled to maintain her petition; Webster v. Lowell, 142 Mass. 324; and as the damages which she seeks to recover are merely for the discontinuance and its consequences, the statute already quoted gives her a remedy against the town.
The parties disagree wholly upon the question whether any part of the petitioner's premises outside of the public street did abut directly upon the discontinued portion of that street. The plan annexed to the respondent's brief would seem to bear out its contention; but we are bound by the recitals of the bill of exceptions and the copies annexed thereto of the plan put in evidence at the trial.
It follows that the requests for rulings made by the respondent were properly refused. None of them was applicable to the facts of the case.
Exceptions overruled.